On May 15 it was my privilege to testify before the Joint Committee on Election Laws in favor of H. 3553 An Act requiring major policy makers to disclose donations to entities engaging in political activity, filed by Rep. Marjorie Decker. It would make big bucks state policy makers like Paul Sagan and Mark E. Nunnelley disclose their dark money donations. Who could object?
I am an associate professor of political science at the University of Massachusetts at Boston. I write to you today as a scholar of money in politics and Massachusetts politics and in support of a bill filed by Representative Marjorie Decker, H.3553 An Act requiring major policy makers to disclose donations to entities engaging in political activity. This bill would correct a serious deficiency in the commonwealth’s campaign finance laws by requiring every person in a major policymaking position, whether or not that person is compensated, to disclose to the Office of Campaign and Political Finance any transfer of money (over $1000) or other thing of value to any entity involved in certain political related activities, as described in the bill.
In 2016 there were four separate initiatives on the ballot on Massachusetts. Following the election OCPF found that one side in each of three of the four campaigns – for charter schools, for a slots parlor in Revere, and opposing legalization of marijuana – had been run with illegal “dark money” contributions. Dark money is funding, often in very large increments, spent to attain a policy or political outcome while hiding the true source identities of the donors to the cause. On Question 2 dealing with charter schools there was at least $775,000 in dark money donations by two individuals who held major policymaking positions with the commonwealth at that time: chairman of the Board of Elementary and Secondary Education Paul Sagan and Mark E. Nunnelly, executive director of the Executive Office of Technology Services and Security.
It was only in September 2017 when OCPF forced Families for Excellent Schools Advocacy to disclose the true identities of its donors (FESA was the major funder of the Great Schools Massachusetts ballot committee) that the public learned that Mr. Sagan had contributed $500 to FESA on September 4, 2016 and $495,000 to FESA on September 5, 2016; and that Mr. Nunnelly had donated $250,000 on October 3, 2016 and $25,000 on November 2, 2016. Thus while voters were determining how to vote on Election Day, they were denied the information that two Massachusetts policymakers had made a combined $775,000 in donations on one side of the charter schools issue. (Mr. Sagan also made a donation of $100,000 to the pro-charters Campaign for Fair Access to Quality Public Schools ballot comittee on August 10, 2016, a contribution that was reported and became a controversial matter).
On September 26, 2017 after the revelations from OCPF, Chairman Sagan released a public letter about his donations. He emphasized that the responsibility of disclosure belonged to FESA and not to him as a donor. That is correct within the meaning of the statute currently. H.3553 would make clear to individual donors in high policy making positions that they too have an obligation to the public to disclose their monetary efforts to influence policy.
H.3553 is also consistent with the fact that a donor already has the responsibility to make sure that he or she does not make a donation for the “purpose of disguising the true origin of the contribution.” There are OCPF regulations in 970 CMR 1.22 that apply to the responsibilities of the individual donor:
(6) No organization or individual may directly or indirectly make a contribution or independent expenditure, or an electioneering communication, in any manner for the purpose of disguising the true origin of the contribution, independent expenditure, or electioneering communication.
(7) If a donor to a tax exempt or other organization knows that a payment or thing of value it provides to the organization will be used to make a contribution or an independent expenditure to support or oppose a Massachusetts candidate or ballot question, or an electioneering communication referencing a Massachusetts candidate, the full amount of the donor’s payment or donation to the organization shall be disclosed . . . For purposes of 970 CMR 1.22, a donor “knows” that a payment will be used to make a contribution, independent expenditure, or electioneering communication, if the donor makes a contribution in response to a message or a solicitation indicating the organization’s intent to make a contribution, independent expenditure, or electioneering communication, or if other circumstances, including the timing and context of the donations, indicate that a donor knew that the payment would be used for such purpose.
There is no question that Mr. Sagan knew where his donations were going and for what purpose, as he wrote in his public letter:
In March of 2016 I requested an opinion from the State Ethics Commission relating to contributions I was considering making from personal funds to organizations associated with efforts to raise the statutory cap on charter schools in Massachusetts by various means, including legislation or a ballot question.
Several paragraphs earlier, Mr. Sagan wrote:
I was familiar with those groups well before Question Two was even placed on the ballot. I knew their leaders, they asked me for financial support, and I gave them some.
He also knew that FESA was structured to hide the true sources of its contributions:
I have been criticized for not making a voluntary disclosure of my donations ahead of any disclosure by the organizations themselves. I did give careful consideration to making such a disclosure—to simply announcing that I had made donations to two organizations that supported lifting the statutory cap on charters. But I decided not to do so.
Why? On balance, I thought that if I went ahead and announced my donations, opponents of Question Two would accuse me of using my position as chair of the board of Elementary and Secondary Education as a platform to help influence support for expanding the statutory cap on charter schools.
Mr. Sagan was undoubtedly correct. Had his donations been known to the public they would have engendered political controversy. Just as they should in a democracy.
In the several years I have been studying dark money I have not been presented with one legitimate reason – not one – to support the notion that wealthy individuals should be able to hide their donations behind any of the facades constructed to conceal their identities. The public has a right to know who is spending hundreds of thousands and even millions of dollars to influence public policy, and this is all the more so when those persons are in policy making positions in government. This is fundamental to democracy. I urge the committee to adopt a favorable report for H.3553. Thank you for your consideration of this highly important matter.
Respectfully submitted,
Maurice T. Cunningham
Associate Professor of Political Science
University of Massachusetts at Boston
(for identification purposes only)
[Full disclosure: as an educator in the UMass system, I am a union member. I write about dark money, not education.]